Opinion
B305777
02-03-2021
In re A.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.M., Defendant and Appellant.
John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. DK10876) APPEALS from orders of the Superior Court of Los Angeles County, Steff Padilla, Commissioner. Affirmed in part and reversed in part. John P. McCurley, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
In the dependency proceedings below regarding A.M., daughter of appellant R.M. (Mother), the juvenile court terminated reunification services for Mother. Mother now challenges the court's denial of her Welfare and Institutions Code section 388 petition for modification, through which Mother sought reinstatement of reunification services or, in the alternative, return of A.M. to her care. We reverse the order to the extent it denies Mother's request for further reunification services.
All further unspecified statutory references are to the Welfare and Institutions Code.
The record reflects that, although Mother failed for two years to successfully reunify with A.M., following termination of services, she fully addressed the drug use, mental health, and compliance issues that comprised the basis for the sustained dependency petition. Mother completed all required programs (with extremely positive reports from her providers), and as of the date of the hearing had maintained over a year and a half of abstinence from drugs and alcohol. She undertook additional counseling and educational efforts on her own initiative. Mother's amelioration of all concerns leading to jurisdiction constitutes a substantial change in circumstances as required by section 388.
Mother also presented evidence that, in light of this change in circumstances and the record as a whole, it was in A.M.'s best interests to continue to work towards a possible reunification with Mother. Following the termination of services, there is a rebuttable presumption that continued foster care is in the child's best interests, and the focus is on the child's need for permanence, rather than on reunifying parent and child. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310 (Marilyn H.).) But a court must still consider the benefits to a child of remaining connected with his or her biological parent. Here, Mother is not only A.M.'s biological parent, but one with whom A.M. shares a strong parent-child bond, based on which the court made the "extraordinary" finding at the section 366.26 hearing that terminating Mother's parental rights would be detrimental to A.M. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) Thus, reinstating reunification services allows A.M. the chance of being raised by a biological parent with whom she shares a strong parent-child connection. The court could not reasonably conclude it was not in A.M.'s best interests to afford her this chance, given the strong evidence that Mother also does not pose a significant risk to A.M. Accordingly, we reverse the court's order to the extent it denied Mother's request for further reunification services.
FACTS AND PROCEEDINGS BELOW
A. Initial Section 300 Petition
Mother was a 16-year-old dependent of the juvenile court living in a group home when she gave birth to A.M. in June 2014. When A.M. was 10 months old, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition for her protection pursuant to section 300 and detained her from Mother. The petition as later interlineated by the court alleges that A.M. was of such a young age that she required constant care and supervision, and that Mother and the father, C.R., were both recent users of marijuana and methamphetamines with histories of illicit drug use. The petition further alleged that Mother had a history of mental and emotional problems, having been diagnosed with depression and bipolar disorder. Notably, the report did not allege, nor did evidence submitted at the jurisdictional hearing show, that Mother's drug use or mental health issues ever caused harm to A.M. Rather, jurisdiction was based on the allegation that, in light of Mother's and the father's drug use and Mother's mental health issues, placing A.M. in Mother or father's care endangered A.M.'s safety and placed her at risk of future harm.
The father is not a party to this appeal, and did not participate in the dependency proceedings below.
The juvenile court sustained the petition and ordered Mother to participate in substance abuse treatment, parenting classes, and mental health counseling. It further ordered that Mother was to receive a minimum of six hours of monitored visitation per week. A.M. was initially placed in shelter care, and in August 2015, she was placed with her current foster family.
B. Mother's Limited Compliance During First Year of Reunification Services
For approximately the first year of the reunification period, Mother struggled to comply with many aspects of her case plan and did not make much progress addressing the issues in the petition. She did participate in substance abuse treatment, individual counseling, and parenting and anger management classes, but missed most of her drug tests and tested positive for marijuana a number of times. Mother was diagnosed with unspecified mood disorder and prescribed psychotropic medication, but failed to take it and repeatedly failed to complete a mental health evaluation as required by her case plan. Social workers observed Mother displaying erratic and combative behavior in dealing with A.M.'s previous foster parent and social workers.
Reports from Mother's consistent monitored visits with A.M. throughout this period were positive, however, and social workers reported more specifically that Mother appeared to have a bond with A.M.
C. Mother's Progress in Second Year of Services Leads to Return of A.M. to Mother in May 2017
Mother's progress with her case plan improved in the second year of reunification services. She began participating in mental health services and taking her prescribed psychotropic medication. She found employment and suitable housing. DCFS liberalized Mother's visits to weekly overnight visits, reports from which were universally positive. She was participating in substance abuse treatment, and began drug testing regularly, with all negative results.
Based on this progress, the juvenile court returned A.M. to Mother on May 31, 2017.
D. Mother's Regression and Defiance of Court Orders Result in Amended Petition and Termination of Reunification Services in August 2018
Unfortunately, the positive trajectory of Mother's progress did not continue after A.M. was returned to her care. Mother's participation in services and drug testing again became inconsistent. In September 2017, Mother took A.M. out of state, without authorization from the court and without informing anyone of their whereabouts, traveling first to Illinois, then to Kentucky. Mother then contacted DCFS and stated she was with A.M. in Mexico and did not plan to return, although Mother later acknowledged that this was not true.
DCFS filed an amended petition, alleging that "[M]other's failure to comply with the [o]rders of the [j]uvenile [c]ourt"—both regarding mandatory drug counseling and testing and not leaving the jurisdiction—"place[d] the child at risk of harm." The court issued a protective custody warrant for the child. In December 2017, Mother and A.M. were staying with the father and his family in Kentucky, and a paternal relative informed DCFS of Mother's whereabouts. Mother and A.M. were then returned to California.
On February 1, 2018, the juvenile court sustained the section 387 petition, ordered A.M. placed out of Mother's home, and granted her family reunification services and monitored visitation. Mother's case plan included substance abuse treatment, drug testing, parenting classes, and mental health treatment (including an evaluation to determine Mother's diagnosis and to comply with taking prescribed medications).
At a review hearing six months later (in August 2018), the court found Mother had made no progress addressing the issues leading to removal, terminated family reunification services, and set a section 366.26 hearing.
E. Mother's Consistent Progress and Compliance Since August 2018
Following termination of services in August 2018, Mother began a period of consistent drug testing with negative results, enthusiastic participation in drug and counseling programs associated with her own status as a non-minor dependent, and additional educational efforts, all with positive and sometimes glowing provider reports. Specifically, after services associated with her non-minor dependency case ended in November 2018, Mother continued to participate in drug treatment aftercare, parenting and anger management classes, and coping skills instruction. In January 2019, Mother successfully completed these programs, at which time one provider noted that Mother had "worked hard in treatment and has had a positive attitude," "appears to enjoy learning from her peers as well as her counselor," and "appears capable of staying clean for good, as long as she continues to put in the work." She then enrolled in additional recovery services that included work with a counselor in individual therapy sessions. No issues were reported regarding her taking any prescribed medications, nor did DCFS report any further incidents of erratic behavior.
Mother enrolled in school and began taking classes to obtain her high school diploma. Mother also started a part-time job at a laboratory in November 2018. One of Mother's teachers reported, "She has received student of the month and most improved student multiple times this year" and has been a "role model to younger students." The teacher further noted, "I work with hundreds of students and I have not seen anyone improve as much as I have seen [Mother] truly blossom into a smart, responsible, respectful and independent woman." She received her high school diploma in June 2019, and then began taking classes at a trade school to become a barber.
Throughout this period, Mother's visits with A.M. were consistent and positive. Neither social workers nor A.M.'s foster mother reported any concerns, and DCFS reports acknowledge the strong bond between A.M. and Mother. Mother also called A.M. regularly, although the child often did not want to speak over the phone. In May 2019, Mother's visits were liberalized to six hours of unmonitored visits per week.
During this period, A.M. remained with the same foster family with which she was initially placed in August 2015, having only been out of their care from approximately June 2017 to December 2017, when A.M. was briefly returned to Mother.
F. Mother's Section 388 Petitions
During this period of progress beginning in August 2018, Mother made three unsuccessful section 388 petitions. Section 388 allows a parent to petition to change, modify, or set aside any previous juvenile court order (§ 388, subd. (a)), based upon a showing of a substantial change in circumstances and that the proposed change would be in the child's best interests. (See In re J.M. (2020) 50 Cal.App.5th 833, 845-846 (J.M.).) Each of Mother's petitions sought reinstatement of reunification services, as well as liberalization of visitation rights. Her most recent petition also sought return of A.M. to her care. We discuss the disposition of each petition below.
1. December 2018 petition
In December 2018, after three months of consistent progress, compliance, and sobriety, Mother filed her first section 388 petition requesting the court reinstate family reunification services and allow her unmonitored visits. The court denied Mother's petition in January 2019 without a hearing.
2. February 2019 petition and section 366.26 hearing
Mother filed another section 388 petition seeking the same relief in February 2019. DCFS recommended the court grant the petition. The child's counsel filed an opposition, however, focusing on the child's need for permanency and stability, and the fact that A.M. had been with her foster family with almost no interruption for approximately four years of her young life.
At a May 2019 hearing on the petition, the court found Mother had adequately proven a change of circumstances but continued the matter to receive additional information on whether the requested orders were in A.M.'s best interests.
The continued section 388 hearing and the section 366.26 hearing were both held on August 16, 2019. Mother testified at the section 388 portion of the hearing, during which she acknowledged that she had allowed A.M., at A.M.'s request, to speak to the father on the phone on one occasion. The Mother further testified that she did not have any regular contact with the father. The court denied Mother's petition, finding Mother had not shown the requested orders were in A.M.'s best interests. The court noted specifically that the instance of Mother permitting A.M. to speak with the father "cause[d] th[e] court grave concern" and that although the court "underst[ood] [Mother] w[as] young," she "continue[d] to violate court orders" and her testimony spoke only to her own needs, rather than those of her daughter. The court also focused on the length of the dependency proceedings to date, noting, "Today's the day. It's been five years. . . . Your baby was taken away at [10] months."
The court appeared to be referencing the single instance of Mother permitting A.M. to speak with the father over the phone, although we are unaware of evidence in the record reflecting that the court had previously ordered that A.M. was not to have contact with the father.
At the section 366.26 portion of the hearing, the court heard testimony from the child's foster mother regarding the child's bond with and reaction to Mother, as well as the child's relationship with the foster parents. The court found A.M. to be adoptable, but additionally found a strong parent/child bond between Mother and A.M., that Mother had "maintained regular visitation and contact with the child, and established a parental bond with the child," "the child would receive a benefit from continuing the relationship that outweighs the benefit of the permanency and stability that would be provided by adoption," and that this was "a compelling reason for determining that termination [of Mother's] parental rights would be detrimental to the child." (See § 366.26, subd. (c)(1)(B)(i).) The court ordered legal guardianship as A.M.'s permanent plan.
The court also ordered DCFS to continue Mother's unmonitored visits and gave DCFS discretion to further liberalize visitation.
3. November 2019 petition
In November 2019, Mother filed a third section 388 petition—which is the subject of this appeal—requesting that A.M. be placed back in her care or, alternatively, that the court reinstate reunification services and order overnight visits. The petition relied primarily on Mother's continued progress, sobriety, and the "strong bond" and "high quality, consistent visits" with A.M. Mother further cited the trial court's finding that the parent/child bond exception applied (section 366.26, subdivision (c)(1)(B)(i)), and that the court had not yet ordered a permanent placement with the foster family. Mother attached an additional report reflecting that visits continued to go well, that neither DCFS nor the foster family had any concerns about them, and that A.M. had a "joyful demeanor when [M]other was mentioned." The juvenile court granted Mother's request for an evidentiary hearing.
The status report submitted for the December 6, 2019, hearing indicated that A.M. continued to do well in the home of her foster family, and that Mother's visits continued to go well.
The court set a full evidentiary hearing on Mother's petition for January 8, 2020, with the section 366.26 selection and implementation hearing to trail. The court also granted the request of Mother and A.M.'s counsel that Mother be permitted monthly overnight visits in the interim.
At the January 8, 2020 hearing, DCFS reported that A.M.'s foster family was open to legal guardianship as well as adoption. The court ordered Mother to receive two overnight visits per month, and continued the hearing on Mother's section 388 petition to March 3, explaining the court would wait until after it knew "what happens" with the four overnight visits that Mother would have in the interim to decide Mother's petition and structure the permanency plan.
At the March 3 hearing, DCFS and A.M.'s counsel opposed Mother's petition. A.M.'s counsel argued that "the best interest[s] prong of Mother's [section] 388 ha[d] not been met in terms of permanence [for] the child," based primarily on the fact that A.M.'s foster family had been caring for her for most of her young life and accepted her as a member of their family. DCFS "concede[d] changed circumstances with respect to her programs, but that's not the issue. The issue has always been best interest."
In denying Mother's petition, the court found Mother had proven a change in circumstances but it was not substantial. "The bond is still there, if not stronger, but not enough to grant the [section] 388. Mother's had enough time. I understand she's young. She's grown a great deal, but the child's entitled to permanence." The court then went on to address best interests, and in this context applauded the foster family's great commitment to the child, again noted the amount of time Mother had already been given to reunify, and concluded that a permanent legal guardianship arrangement with the foster family would be in A.M.'s best interests. The court ordered Mother's overnight visits twice per month to continue and ordered Mother and the caretakers to participate in mediation to work out visitation schedule issues, given difficulties in the past determining which adult should bear the burden of transportation between Los Angeles, where Mother lived, and Palmdale, where the foster family lived.
DISCUSSION
A. Applicable Legal Framework and Standard of Review
The party filing a section 388 petition "has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child." (In re Mickel O. (2011) 197 Cal.App.4th 586, 615, italics omitted.) "[T]he change in circumstances must be substantial." (In re Ernesto R. (2014) 230 Cal.App.4th 219, 223; see also In re Mickel O., supra, at p. 615 [change must be genuine and " 'of such significant nature that it requires a setting aside or modification of the challenged prior order' "].)
The section 388 modification procedure serves as an " 'escape mechanism' when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528 (Kimberly F.); see Marilyn H., supra, 5 Cal.4th at p. 309.) We review a juvenile court's denial of a section 388 petition for abuse of discretion, and review its factual findings for substantial evidence. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
B. Substantial Change in Circumstances
"A parent establishes a substantial change of circumstances for purposes of section 388 by showing that, during the period between termination of reunification services and the permanency planning hearing, he or she has resolved the previously unresolved issues supporting juvenile court jurisdiction." (J.M., supra, 50 Cal.App.5th at p. 846; see In re A.A. (2012) 203 Cal.App.4th 597, 611-612 [the "change in circumstances" must be such that "the problem that initially brought the child within the dependency system must be removed or ameliorated"].) Here, juvenile court jurisdiction was initially based on Mother's drug use and mental health issues, and later based on her failure to comply with court orders as well. Mother made an ample showing that all of these concerns have been ameliorated. Beginning in August 2018, she submitted to regular drug testing without exception and received all negative results. This reflects approximately 14 months of sobriety at the time she filed her petition, and approximately 17 months of sobriety by the time the court denied the petition. She completed substance abuse programs, including aftercare, with nothing but positive reports from her providers. Also, since the court terminated reunification services, Mother has been diligently addressing her mental health issues through counseling and other programs (such as anger management). Nothing in the record suggests she refused to take any prescribed medications or that her behavior was erratic or concerning. The record further reflects that she has consistently complied with court orders in this time frame. The court could not reasonably deduce from this record that Mother had failed to offer evidence establishing a substantial change in circumstances, and abused its discretion in concluding she had not. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).)
As noted at footnote 3 ante, we are aware of nothing in the record supporting that Mother violated a court order by allowing A.M. to speak with the father over the phone on a single occasion in approximately late 2018 or early 2019. The juvenile court did not expressly rely on lack of compliance in denying Mother's November 2019 petition, however. To the extent it implicitly relied thereon, substantial evidence does not support that Mother failed to comply with any court orders for at least a year and a half as of the date of the hearing on Mother's third petition.
C. Best Interests Analysis
We must next consider whether the juvenile court abused its discretion when it concluded that, in light of the change in circumstance Mother has shown and the evidence in the record as a whole (see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451), granting Mother's petition—either by returning A.M. to her care or reinstating reunification services—would not be in A.M.'s best interests. Determining what will be in the child's best interests is the "ultimate question" on a section 388 petition. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.)
After reunification services have been terminated, there is "a rebuttable presumption that continued foster care is in the child's best interests." (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448; Marilyn H., supra, 5 Cal.4th at pp. 309-310.) This is a result of the shift in focus at this stage of the proceedings away from the parent's interest in remaining with the child and toward the child's need for permanence and stability. (See J.M., supra, 50 Cal.App.5th at p. 847.) The California Supreme Court has stressed that, in light of this presumption and the limited options for preserving parental rights at a section 366.26 hearing, section 388 must create a mechanism in practice, not just in theory, for parents seeking to regain custody of their children "in the short, final period after the termination of reunification services but before the actual termination of parental rights" at that hearing. (Kimberly F., supra, 56 Cal.App.4th at p. 528, citing Marilyn H., supra, 5 Cal.5th at p. 309; Kimberly F., supra, at p. 528 ["section 388 is vital to the constitutionality of our dependency scheme as a whole, and the termination statute, section 366.26, in particular"].) Thus, to determine when the presumption in favor of a child remaining in his or her current foster placement has been rebutted, courts do not engage in a "one-dimensional" best interests comparison between the child remaining in what is often a happy, long-standing foster placement, and the child leaving such a placement to reunite with a parent. (Kimberly F., supra, at p. 530.) Rather, "a court must perform a more nuanced best interests analysis, considering, at a minimum: '(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers,' taking into account 'any interest of the child in preserving an existing family unit, no matter how, in modern parlance, "dysfunctional" ' and 'the complexity of human existence'; and (3) the nature of the changed circumstances and the reason a change was not made sooner." (J.M., supra, 50 Cal.App.5th at p. 848, quoting Kimberly F., supra, 56 Cal.App.4th at p. 532, italics omitted.) These "factors will fall along a continuum, one extreme of which is the notion that just because a parent makes relatively last-minute (albeit genuine) changes he or she is entitled to return of the child, [and] the other is the obvious attractiveness of insuring that the child remains with highly functional caretakers. Neither extreme can be dispositive." (Kimberly F., supra, p. 530.)
1. Analysis Under Kimberly F. Factors
We consider together the first and third Kimberly F. factors, as they both relate to the basis for juvenile court jurisdiction. A parent's drug use and mental health problems can certainly result in serious harm and trauma to a child, a sad fact to which countless dependency cases attest. But here, neither Mother's drug use nor her depression and prior diagnosis of bipolar disorder ever directly harmed A.M. In addition, Mother struggled with these issues while she was quite young—she was barely 18 years old when A.M. was initially removed—an important contextual factor in assessing both the seriousness of the problems and the amount of time it took Mother to ultimately address them. (See Roper v. Simmons (2005) 543 U.S. 551, 570 [noting " '[t]he relevance of youth as a mitigating factor' "]; Johnson v. Texas (1993) 509 U.S. 350, 368 [same].) The manner in which circumstances have changed further suggests that granting her petition would be in A.M.'s best interests: Mother has not only gotten clean, but also remained so for a substantial period of time, taken it upon herself to further better herself through programs and education not required by the court, and excelled in those programs.
As to the relative strength of the bonds the foster family and Mother have with A.M., the record and the trial court's own findings establish that Mother and A.M. are very bonded, such that the benefits of a continued relationship derive not only from their biological connection, but from a significant parent-child bond that Mother managed to nurture and deepen, despite not being A.M.'s primary caregiver. Indeed, because of this, the court did not select adoption as the permanent plan. DCFS, like the child's counsel below, stresses that there is a strong bond between A.M. and her foster family as well. The record also contains statements from the foster parent that the family views A.M. as their child, and that A.M. has bonded with her foster siblings. We in no way seek to minimize this. But if such a showing that the child is in a loving long-term foster care placement were alone enough to establish remaining in that placement is in the child's best interests, "section 388 would not serve as the important due process check the California Supreme Court has described it to be." (J.M., supra, 50 Cal.App.5th at p. 848.)
Thus, on balance, the Kimberly F. factors point to the conclusion that it is in A.M.'s best interests to continue working towards a possible reunification with Mother by offering Mother additional reunification services.
2. The juvenile court's best interests determination
We recognize that a section 388 best interests determination is entrusted to the sound discretion of the juvenile court, and we may not reverse such a determination merely because our analysis of the Kimberly F. factors might differ from the juvenile court's. (See Stephanie M., supra, 7 Cal.4th at p. 318.) But here, the juvenile court could not reasonably make the best interests determination it did and remain consistent with its section 326.26, subdivision (c)(1)(B)(i) finding regarding Mother and A.M.'s extraordinary parent-child bond. We conclude it was not reasonable for the court to determine that it was not in A.M.'s best interests to continue actively pursuing her reunification with Mother via additional reunifications services, given the strong evidence Mother did not pose a significant risk to A.M and the court's finding that Mother had such a close relationship with A.M. that it would be detrimental to A.M. to terminate Mother's parental rights. (Stephanie M., supra, 7 Cal.4th at p. 318.)
In denying Mother's petition, the juvenile court specifically noted that Mother had "had enough time" and referenced A.M.'s general need for permanence and stability. But permitting A.M. a further chance to reunify with Mother by granting Mother additional reunification services can only be counter to the goal of permanence if one assumes that Mother's efforts to reunify are likely to fail. The court could not reasonably assume that on the facts in the record.
The only basis on which the court could infer Mother's reunification efforts were likely to fail is that Mother had previously failed to reunify for a period of almost two years. The trial court suggested as much with its comments regarding the duration of the dependency case, and DCFS expressly makes this argument in its brief. But Mother's past failings cannot provide a basis for assuming she will be unsuccessful in reunification efforts following a substantial change in circumstances—particularly one of the type reflected in this record. As we observed in J.M., "a section 388 petition seeking reinstatement of reunification services or return of the child will necessarily involve a parent who has made mistakes sufficient to support termination of services at some point in the past. The question must be whether the changes the parent made since then are substantial enough to overshadow that prior determination, such that reunification is now in the child's best interests. That Mother did not immediately [address the issues underlying juvenile jurisdiction] does not render it in [A.M.'s] best interests to deny [her] the opportunity to be raised with [her] biological mother . . . , with all the benefits courts recognize this could offer [her], particularly when, at the time of the hearing on her petition, Mother had for over a year [and a half]" shown no signs of any of the issues leading to juvenile court jurisdiction. (J.M., supra, 50 Cal.App.5th at pp. 848-849.)
Moreover, that Mother was herself a teenager during much of the time she struggled to make progress in her case plan, but nevertheless has been able to do so as she matured, suggests that these past failings are at least in part attributable to her youth, rather than to an immutable inability to stay sober, attend to her mental health needs, or do what is best for her daughter. "[T]he signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside." (Johnson, supra, 509 U.S. at p. 368; Roper v. Simmons, supra, 543 U.S. at p. 570 [relying on secondary authority for the proposition that, for " 'most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood' "].)
We recognize that prolonging the time frame in which reunification is a possibility may create uncertainty from the perspective of the foster family, which, as the trial court noted, has shown such devotion to A.M. Although we are sympathetic to this, we can no more base a best interests determination on the needs of the foster family than we can base it on Mother's needs. We look instead to what is best for A.M., considering the record as a whole.
For the reasons discussed above, we conclude that the trial court abused its discretion in finding it would not be in A.M.'s best interests to allow her an additional opportunity to reunify with Mother by denying Mother's section 388 petition to the extent it sought reinstatement of reunification services.
We recognize that, at this point, reunification services will primarily consist of visitation, and that because A.M.'s permanent plan is legal guardianship, Mother could potentially continue visits with A.M. even if we were to affirm the juvenile court's refusal to reinstate services. Indeed, the court ordered continued visitation for Mother at the most recent hearing in the record, and subsequent minute orders reflect that those regular visits (including overnight visits) have continued. But, in reality, visitation attendant to legal guardianship is of a very different type than visitation as part of reunification services. When reunification services are in place, the court has a statutory mandate, rather than discretion, to order visitation. Specifically, the juvenile court has discretion to order visitation attendant to legal guardianship to the extent it will support the stability of the child. (See Marilyn H., supra, 5 Cal.4th at p. 309.) Visitation as part of reunification services, by contrast, must be "as frequent as possible, consistent with the well-being of the child." (§ 362.1, subd. (a)(1)(A) ["any order . . . ordering reunification services, shall provide as follows: [¶] . . . for visitation between the parent . . . and the child"].) Moreover, the latter type of visitation has the specific goal of "facilitat[ing] reunification." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2020) § 2.171[6][b], p. 2-715, citing § 362.1.) Thus, reinstating Mother's reunification services will change the nature and frequency of her visits with A.M. in a manner that will meaningfully increase A.M.'s opportunity to reunify with Mother.
DISPOSITION
The juvenile court's order denying Mother's November 2019 section 388 petition is reversed to the extent that it denies Mother's request that she receive additional reunification services. Upon remand, the court shall issue a new order, granting Mother additional reunification services of the type and duration the court deems appropriate.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
BENDIX, J.